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Instagram's New Terms of Service to Sell Your Photos

Facebook subsidiary Instagram recently revised their terms of service, adding a few controversial new terms that will allow the company to monetize your photos. They broadened the license you give to the photo-sharing service to allow Instagram to sub-license your photos, adding a broad grant of permission:

To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you.

On its face, this sentence is not limited to public photos, though the company does retain its privacy setting options for photos. If you do not like this possibility, the only choice is to leave the service entirely.

Instagram should reconsider this policy, because it conflicts with the three key principles we developed for social networking services: informed decision making, control and the right to leave.

First, it is very hard for you to make an informed choice, since Instagram has not explained how it will implement this monetization. In effect, they are asking you to agree to allow them to do whatever they choose to do later, whether or not there is an opt-in, opt-out or user controls over the future commercialization.

Second, it violates the principle of user control, since there is no explicit opt-in permission from the user for this change in how user content will be used. When Facebook, Instagram’s parent company, ran into trouble for its privacy practices, one of the key issues was making changes where users had to opt-out. Instagram should be cautious before heading down the same road.

Third, if users are dissatisfied with a social network’s practices, they should have the ability to leave – which means being able to remove one’s entire account so that the data is no longer under the social network’s control. Here, however, if you agree to these terms (effective January 16), and then – perhaps after the commercialization feature is activated sometime next year – decide to leave the service, Instagram retains the “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to all of your photos.

Some of these problems are less pressing if the photo is intended to be public, and some users may actually want the opportunity for their photos to get wide spread fame and fortune. For those users, the better way forward is enabling users to easily license their photos with Creative Commons.

Other photo services offer revenue sharing with their users. For example. Yahoo’s Flickr not only offers the ability to mark photos with a Creative Commons license, but also has an opt-in program with Getty Images for users who want to commercialize the photos. While imperfect (Getty requires exclusive rights, and is incompatible with CC licenses), there is something to the notion of sharing the revenue with the user.

A final reason that Instagram might want to reconsider is that the license provided by the user does not give them all the legal comfort they need. The user is generally going to be the photographer and not the subject of the photo. A right to the user’s “likeness” is not going to substitute for a model release from the subject of the photograph.

If you wish to opt-out of the new terms, but not lose your photos, Wired has provided a handy guide to downloading your photos and deleting your account, relying upon Instaport. Note, however, that the Terms claim to prohibit crawling or scraping – it remains to be seen if Instagram will take action to stop people from using third party services to take their photos with them if they opt-out.

Update: Instagram has put out a statement on their blog saying that they plan to reconsider these changes, and will be modifying the language in the Terms. Instagram also explained that they feel that the Terms were misinterpreted and they did not intend to sell photos. Whatever their intention, the key is the language of the agreement. We look forward to reviewing the revised Terms.